Wednesday, October 24, 2007

When an inventor is granted a patent he enters into a contract with society: In return for a 20-year monopoly on the exploitation of his invention, the patentee is required to provide full details of the invention, and an explanation of how it works.

This information is then made available to the public by the patent office so that others can learn from the invention. The aim, says Wolfgang Pilch, principal director for patent information at The European Patent Office (EPO), is to create a "positive feedback mechanism." As he explains, "The published information helps stimulate new R&D, and so encourages further innovation."

How is this information made available to the public? Historically, it was accessed in the reading room of the issuing patent office. Anyone wanting to establish "the state of the art" in a particular field, therefore, could visit the reading room and peruse relevant patent documents.

But this was a far from satisfactory arrangement. One problem was that not everyone lived within easy reach of their national reading room, or had the time, or the expertise, to spend long hours reviewing hundreds of complex documents.

And while patent offices (PTOs) published regular printed gazettes listing bibliographic details of newly issued patents, the patent documents themselves were sometimes unavailable in the reading room for months, or even years. Moreover, as the number of patents issued began to explode — and were filed in more and more different countries — the access problem worsened.

For entrepreneurs, however, the problem was a good market opportunity, and wily individuals began to collect, translate and aggregate information from the different national patent offices, which they then sold on to other patent offices, to patent attorneys, and to private industry. No one was more successful in this than Monty Hyams, the founder of Derwent Information (now owned by the global information company Thomson Corporation).

Later, as the technology became available, these commercial vendors also began to develop large electronic patent databases, and then sold access to them via proprietary online services like LexisNexis (now owned by Reed Elsevier), Dialog (now owned by Thomson), Questel, and STN International. And to help patent searchers pinpoint relevant patents from the ever growing haystack, they developed sophisticated classification and indexing systems, and produced abstracts that described the invention in layman's language.

In short, distributing public domain information turned out to be a very lucrative business, and access to patent databases was soon attracting premium rates.

When the Internet became widely available in the mid-1990s, however, patent offices began to distribute this information online themselves, a development that led to growing conflict between the PTOs and commercial vendors, as the latter faced a classic distinermediation dilemma.

Nowhere has this conflict been more visible than in the increasingly bitter debate over the actions of the EPO, which decided not to restrict itself to distributing its own patent data, but information from other patent offices too. Consequently, today the EPO's online service — esp@cent — contains around 63,000,000 patent records, and 50 million images of patent documents.

Even more controversially, the EPO began to provide value added services too.

The EPO maintains that it is justified in doing this, since it has a duty make patent data available. As Pilch puts, "It is my sincere belief that the patent offices have an obligation to serve the public and to ensure that information on patents is readily available to all."

Vendors, however, argue that PTOs should confine themselves to providing data from patents filed in their own jurisdiction. Moreover, they add, this should be just the raw data. It is, they insist, the task of commercial vendors to aggregate the data from different offices, and to provide any value-added services.

The tension between the EPO and commercial vendors today is palpable. Speaking to me recently (but stressing that he was talking in a personal capacity only) Peter Vanderheyden, vice president of global intellectual property at LexisNexis, said, "I'm sure they [the EPO] feel they have an economic responsibility that is better fulfilled by providing access to 'all' government patent data (including value added data and analytic tools for that matter), but I think their argument is weak given that there are more than a sufficient number of private players willing and actively providing this information to the public today."

Who is right?

On the one hand, one could argue (as Vanderheyden does) that if the PTOs interfere too much in the market then innovation in new patent information distribution methods, and tools to mine and analyse the data, will be chilled. Vendors also argue that we could end up in a situation where a handful of state organisations had a monopoly on the distribution of patent information.

On the other hand, one could argue that by lobbying against the activities of the EPO vendors are seeking to restrict the accessibility of public information, since if the PTOs were confined to providing raw patent data alone only those who could afford access to proprietary online services would be able to obtain it in a user-friendly and comprehensible manner. Moreover, critics might argue, vendors are doing so solely in order to protect their own proprietary interests, and what some might feel are outdated business models.

Intrigued by the debate last week I conducted an interview with the EPO's Wolfgang Pilch, which I am publishing today as a downloadable PDF file.

Those who follow the debate about Open Access to the scholarly literature may find some interesting parallels.

####

If you wish to read the interview with Wolfgang Pilch please click on the link below. I am publishing it under a Creative Commons licence, so you are free to copy and distribute it as you wish, so long as you credit me as the author, do not alter or transform the text, and do not use it for any commercial purpose.

If after reading it you feel it is well done you might like to consider making a small contribution to my PayPal account. I have in mind a figure of $8, but whatever anyone felt inspired to contribute would be fine by me.

Friday, October 19, 2007

Free Online Scholarship

Peter Suber

Philosopher,
jurist, and one-time stand-up comic, Peter Suber is widely viewed as the de
facto leader of the open access (OA) movement. A senior researcher at the
Scholarly Publishing and Academic Resources Coalition (SPARC), Open Access
Project Director for the public interest advocacy group Public Knowledge, and
Research Professor of Philosophy at Earlham College, Suber is also an advisor
to a number of other OA-related organisations — including the WikimediaFoundation, the Open Knowledge Foundation, and the Australian Open Access to
Knowledge Law Project (OAK).

To
pay his way through graduate school, Suber developed a side-career as a
stand-up comedian, working in clubs, universities, tech conferences, and
television. As his gigs became more plentiful and lucrative, he had to choose
between full-time philosophy and full-time comedy. The choice for philosophy
was an easy one, in part, he says, because teaching philosophy meant that he
didn't have to leave comedy entirely behind!

Choosing
philosophy didn't assure him a career, however. After turning down an
unsatisfactory tenure-track job offer he realised that the tight job market did
not allow him to be picky. He might have returned to comedy, but acquired
Graves disease (a thyroid condition now under control), which made him too
hoarse to speak in public for several months. So he started law school and
remained full-time in the philosophy job market. His thinking was that if he
found a good job in philosophy, he'd take it; and if not, he'd be trained for
something else.

After
two years of law school he got an offer from his alma mater, which he
considered an ideal job. So he arranged with his Dean to finish law school
before starting his job, and then returned to Earlham to teach philosophy, law,
and occasionally computer science.

Intrigued by the potential of the Web

In
the mid-1990s, intrigued by the potential of the Web, Suber began to put his
academic papers online. To his surprise, he immediately began to receive emails
from other researchers wanting to discuss his ideas. This was just the kind of
feedback that he had always expected to get by publishing in print, but which
rarely materialised until his work was available online.

Excited
by his experience, Suber began to make contact with other academics doing the same,
and started a weekly newsletter. His plan was to report on developments, and
encourage other researchers to take advantage of the new medium for
disseminating their scholarship. Soon he was sufficiently gripped by the
possibilities of what he now called "Free Online Scholarship" (FOS)
that Suber devoted a sabbatical year to furthering his aim, and eventually
deciding to put his academic career on hold to devote all his energies to FOS.

For
this Suber realised he would need funding. He soon secured a grant from GeorgeSoros' Open Society Institute (OSI) and in 2003, after a final post-sabbatical
year of teaching, he and his wife (who had been teaching classics at Earlham)
both gave up their tenured positions, and moved to Maine — where Suber threw
himself his new project with energy and determination.

That
he had something to offer the world in his new role became apparent at a
meeting organised by OSI in 2002. Held in Budapest, the aim of the event was to
explore possible synergies between a number of apparently related developments
— including several initiatives undertaken by SPARC to address the so-called
"serials crisis", the nascent self-archiving movement, and the
emergence of new publishers like Biomed Central, who were committed to exploiting
the internet to develop new publishing models that would make research papers
freely available to everyone, rather than accessible only to those able to
afford the constantly rising journal subscriptions.

The
meeting was hugely successful, giving birth both to the open access movement
and the Budapest Open Access Initiative (BOAI). It also attracted $3 million in
funding from George Soros, for projects aimed at providing what was now no
longer called Free Online Scholarship, but open access. Those attending the
Budapest meeting also decided that it would be good to produce an open access
manifesto — and the task of writing it fell to Suber.

In
penning the manifesto Suber first demonstrated his unique ability to articulate
the aims and aspirations of the movement in strikingly clear and compelling
terms. Frederick Friend, one of the other attendees of the Budapest meeting,
describes it thus: "His beautiful words and phrasing gave the movement a
vision which people in every country have been able to relate to."

In
recognition of his important contribution to OA, OSI has continued to fund
Suber's activities ever since, enabling him to develop his daily-updated blog
(Open Access News) and engage in advocacy. And with additional support from
SPARC Suber has been able to continue writing his (now monthly) newsletter —The
SPARC Open Access Newsletter. Both publications have become key platforms for
promoting open access, and for publicising and recording its progress. And
along with the Budapest manifesto, they are viewed as the bible of the OA
movement. Suber is also widely sought out for advice by researchers,
librarians, researcher funders, publishers, and governments.

Big tent

Above
all Suber's work is valued for its precision and its unemotional but tireless
advocacy for a cause that he has both reported on and helped to shape.
"All of his writing has an intellectual rigour that one might expect from
a good philosopher or jurist," explains the director of SPARC Europe David Prosser. "He can construct and deconstruct arguments. It is amazing to see
him methodically pick-apart an anti-OA piece."

Adds
Prosser, "He is devastating on sloppy logic, inconsistencies, and
disingenuous ideas, as well as being very clear on the distinction between
opinion and fact."

It
is his objectivity and rationality above all that has seen Suber become the
unofficial leader of the movement. His calm and inclusive approach has also
proved the essential glue to hold together an often rowdy and rumbustious
collection of highly-opinionated and disputatious individuals. For like most of
the burgeoning free and open movements, the open access movement is constantly
riven with disagreements and factional in-fighting, most notably between
supporters of self-archiving (the so-called green road to open access), and
those who insist that open access publishing (the gold road) is the best way
forward.

At
the heart of Suber's ability to unite the movement is a commitment to what he
calls "the big tent" — a tent from which no faction of the open
access movement is excluded, and in which all shades of opinion are welcomed.
His blog covers points of view he does not personally accept, but he gives them
space to make their case before offering his own constructive, critical
comments.

In
his own analytic pieces, Suber often argues that the movement will make faster
progress by harnessing differences than by quarrelling about them, but he does
not hesitate to criticise ideas he believes are incorrect or untenable, even
from allies. He achieves the difficult balance of being inclusive but not
woolly-minded or indecisive.

Behind
his approach lies a belief in the principle that the best way of achieving open
access is to acknowledge when different strategies are compatible and to tap
the energy of everyone who wants to play a part. The way to think about it, he
says, is as a division of labour.

"It's
good for us that some people want to pursue OA journals first, because they
will work hard to create OA journals. It's also good that some people want to
pursue OA repositories first, because they will work hard to create and fill OA
repositories. The two strategies are complementary and we need them both.
Individuals have to decide how to spend their time, but the movement doesn't
have to decide which of these strategies is more urgent. On the contrary, it
should support this division of labour."

Unlike
many of his fellow OA advocates, Suber also views the movement in a larger
context — recognising that the internet has implications for knowledge sharing
that go some way beyond scholarly journal articles alone. And while insisting
that the open access movement can achieve its objectives unilaterally, he is
nevertheless conscious that there are important synergies with the other free
and open movements, and reasons for sometimes working in common cause.

As
Clifford Lynch, director of the Coalition for Networked Information (CNI), puts
it, "Peter's interests are very broad — they go not only to open access,
but to the future of scholarly communication broadly, and to questions that
range from new genres of scholarly communication to open data and open notebook
science. Indeed, he is also interested in questions like citizen access to
government data beyond the scholarly setting."

Sitting at his computer

What
is most striking is that Suber has acquired his leadership role not by sitting
in smoke-filled rooms, and constantly travelling around pressing the flesh, but
largely by sitting at his computer in the peaceful surroundings of coastal
Maine — on an unpaved road off the Bagaduce River — from where he despatches a
constant stream of news, commentary, advice and wise words.

For
although Suber travelled frequently, and spoke often, in the years immediately
following the seminal Budapest meeting (and the subsequent Bethesda meeting),
more recently he has deliberately cut back on travel, in part from weariness
and in part to cope with the rising demands of his newsletter, blog, and the
informal advice and consulting he undertakes.

Indeed
so successful a politician and diplomat does Suber appear to be that — despite
his frequent absence at OA events — he has gained the respect even of those who
oppose open access, or seek to divert it to their own ends. "Peter is the
'thinking person's OA advocate' — he is measured, reasonable and considers
others' ideas (even if I don't always agree with his conclusions!)", says
former chief executive of the Association of Learned and Professional Society
Publishers (ALPSP) Sally Morris.

Or
as Springer'sJan Velterop, puts it, "Peter's measured and well put
arguments are never offensive and on the whole as fair as you could expect from
anybody who clearly believes in one side of the argument. That in itself made
open access far more credible, sensible, and reasonable than the heated
arguments that flew before, and keep on flying."

In
short, Suber appears to have gained the trust and respect of all the actors in
the OA drama, not excluding the movement's hotheads and those who have sought
to derail it. Vitally, suggests OSI's Melissa Hagemann, his non-confrontational
approach has prevented the movement from "tearing itself asunder".

But
it would be wrong to say that Suber has no critics. Stevan Harnad worries that
has a tendency to be too non-confrontational and emollient. This, he believes,
has sometimes held the movement back. Although deeply complimentary and
respectful of Suber, and keen to acknowledge the central role he has played,
Harnad worries that Suber's determination to be reasonable has on occasions
enabled the open access publishing faction to sideline and devalue
self-archiving.

"He
is even handed to a fault," says Harnad. "If he were less compliant
and obliging, he could have fought harder at the Bethesda meeting (where he was
and I wasn't) where, vastly outnumbered by the gold contingent, OA essentially
got defined as OAP [Open Access Publishing], omitting green completely, and
setting OA back at least 3 years."

However,
Harnad adds: "But this is all carping at minor things considering that
Peter is the only other person in the 'OA' movement who has seen and understood
it all, as of 2001. Without exception, all others have either gone pure-gold,
over-gold, or simply never understood green properly. Peter did."

Does not look for fights

Criticism
of Suber's ecumenism, however, overlooks the fact that beneath his emollient
exterior lies a powerful and unbending determination, an extremely focused
goal, and a well-articulated strategy. As fellow OA advocate Jean-Claude Guédon
puts it, Suber "shuns controversy but will hold his stand if needed. In
other words, he strikes me as someone quite courageous, but he does not look
for fights."

And
if he failed to get green OA an equal hearing at Bethesda, explains Suber, it
was not for want of trying. Not only was he outnumbered by the gold advocates
attending, he says, but many of them were simply unable to comprehend the green
argument.

"The
fact is that green OA has always had to fight for recognition," he
explains. "Its novelty makes it invisible. People understand OA journals,
more or less, because they understand journals. But there's no obvious
counterpart to OA archiving in the traditional landscape of scholarly
communication. It's as if people can only understand new things that they can
assimilate to old things. All of us have had the experience of describing green
OA at a meeting and then getting questions that presuppose that all OA is gold
OA. All of us have seen critics object to green OA policies by pointing out
supposed shortcomings of gold OA. This is the kind of obstacle green OA faced
at Bethesda."

In
short, it would wrong to suggest that Suber is in any way a pushover, or that
he is not prepared to call a spade a spade. Moreover, he stressed to me, he is
a strong believer in the need to take a tough stand when necessary. "When
calling a spade a spade, or speaking accurately, requires a fight, then I
fight, and many of my public writings are 'fighting words' in just this
sense."

But
he immediately adds: "Even then, however, I want to be constructive. I
want to preserve the possibility that I might change minds and not just (as politicians
put it) energise the base."

Certainly
it is not difficult to find examples of his tough talking. In September, for
instance, he criticised the Canadian Institutes of Health Research (CIHR) for
introducing a mandate with a "major loophole".

He
has also been a frequent critic of the US National Institutes of Health (NIH),
which in 2005 retreated from a strong draft policy intended to mandate
NIH-funded researchers to self-archiving their papers, to a weak request that
they do so. As Suber put it, "I have to conclude that the NIH has weakened
its policy and that the weakening is unjustified and harmful."

And
in April Suber criticised the Howard Hughes Medical Institute (HHMI) for
agreeing to pay Elsevier between $1,000 and $1,500 an article to deposit
HHMI-funded research into the PubMed Central (PMC) archive. After relentlessly
cataloguing the failures of the agreement, he concluded: "In sum, what's
wrong with this picture? HHMI is paying a fee for green OA. Despite its fee,
HHMI is not getting immediate OA. Despite its fee, HHMI is not getting OA to
the published version of the article. Elsevier (beyond Cell Press) is even
lengthening its embargo period. Elsevier is permitting embargoed deposits in
PMC, but it already permits free and unembargoed deposits in IRs. Actually
making the deposits is a semi-automated clerical task that doesn't come close
to justifying these fees."

Importantly,
Suber is not shy to take on the formidable Harnad — the self-styled
"archivangelist" who regularly and relentlessly verbally batters
opponents into submission, or silent retreat. Just this month he engaged in a
series of public disagreements with Harnad over copyright and "permission
rights."

Firm corrective hand

I
too have felt the firm corrective hand of Suber. Several years ago I published
a blog-based article in which I had described Suber as an OA evangelist.
Shortly after I received a terse email from him in which he said that it was
"inaccurate and pejorative" to describe him in that way. "It suggests
that I make faith-based appeals, which I do not, or that I raise my voice,
which I do not." He would prefer it, he added, if I would refer to him as
an open access "researcher" instead. Suitably admonished I edited the
quote!

What
is undeniable is that in putting his career on hold Suber has demonstrated a
personal commitment to open access that no one else can claim to have made. As
Harnad points out, "I sacrificed a lot of time to OA, but Peter sacrificed
even more than that. He essentially traded his career for it, and I very much
hope, if there is justice in the world, that once OA prevails he will be
rewarded with the secure, prestigious position he deserves, rather than dropped
by all those he has helped."

He
adds: "The sacrifice is all the greater once you realise that Suber views
open access advocacy as a temporary duty, and dreams of returning to
philosophy, and writing a book that will combine his many interests."

In
fact, Suber told me, he has plans for more than one book sketched out. "I
have a dozen philosophy projects in different states of completion. Some I'll
never finish even if I had time, but at least half are still high priorities
for me."

As
further evidence that he views open access as a "digression", rather
than an exit, from his career, Suber retains a non-remunerated research post at
Earlham.

In
short, it is the combination of his total commitment to the cause and his
ecumenical but firm guidance that has earned Suber his role as de facto leader
of the open access movement. This has undeniably earned him the respect that
leadership demands. When preparing to interview Suber I emailed Prosser to ask
if he would comment on him. He replied almost immediately, "I'm happy to,
but I'll gush — I think Peter is an International Treasure!"

##

I
had been hoping to interview Suber for some time, but events kept getting in
the way. I was also conscious that he is an extremely busy person, and since I
needed to steal at least three hours of his time to do the kind of interview I
had in mind, it was not a regular journalistic request that I was making. In
the event, Suber agreed immediately, and our first conversation took place the
following week. This was followed up by a second call five days later.

We
began our conversation on Skype, but had to switch to the regular telephone
when it kept falling over. The only interruptions to our conversation were the
constant chattering of Suber's parakeets — which, judging by the volume of the
noise, were surely perched on his shoulder leaning into the phone mouthpiece,
and for all I knew expressing strong views on the subject of open access in
parakeet-speak — and a sudden whooshing noise towards the end of the
conversation. The latter turned out to be a vacuum cleaner, although it wasn't
clear whether the ever-busy Suber had started to multi-task, or a third party
had suddenly decided that the floor under his desk was in need of urgent
attention!

On
later seeing the draft text of the interview Suber evidently regretted not
having silenced his birds before we spoke. He commented, with some passion:
"I hate those parakeets! And for the same reason dread being thought of as
a parakeet person!"

In
speaking to Suber I found myself constantly thinking that I was talking to an
Englishman who had, by some strange accident of fate, acquired an American
accent. While saying this may seem like shocking prejudice, his reserve,
politeness, and extreme modesty seemed, well, distinctly un-American.

This
impression was only strengthened when at the end of the second conversation he
said, somewhat apologetically, that he had struggled to answer many of the
questions before I threw the next one at him. From the diffident way in which
he broached the subject I concluded that, while he is happy to be robust when
discussing ideas, Suber is generally shy and retiring when it comes to other
matters, particularly his private life — a point underlined by the almost
monosyllabic replies he gave to my questions about his family.

What
was surprising to me, however, was that for a man who in a former life had been
a comedian, Suber appeared unexpectedly serious-minded, not to say somewhat
humourless. Aside from a couple of ironic remarks, I detected no playfulness,
and no hint of an absurdist view of the world. During our conversation he
chuckled only once.

When
I tackled him on this, Suber replied: "I used to be angry and funny. Now I
am neither." He then added dryly, demonstrating that he can still get in
touch with his former self, "Maybe it's just cognitive decline!"

I
have always been puzzled about Suber's motivation. Why would anyone put their
career on hold for a cause that, at the time he abandoned his professorship,
was far from certain of success?

In
the hope of finding a clue I read some of Suber's non-OA writing before
speaking to him. In doing so I came across a baccalaureate address he gave at
Earlham College in 1987. There he discussed how Danish philosopher Søren Kierkegaard had argued that in the modern age many of us are able to arrive at
a position where we have no external constraints on us (a state that Immanuel Kant called negative freedom), but that most of us never move beyond that point
— to find a new authority, or a new direction (positive freedom). As such, believed
Kierkegaard, we never reach the state of being able to
"self-legislate" about our lives, and our lives are therefore too
often meaningless.

I
wondered if maybe Suber's decision to abandon his career at Earlham had been
inspired by a desire to "self-legislate", and to put new meaning into
his life. Perhaps, I thought, it was an example of a philosopher deciding to
live by the sword.

When
I pressed Suber on his motives, however, he cited neither Kierkegaard nor Kant,
but the founder of the Quakers, George Fox. Fox, he said, had stressed the need
to live a useful life.

Suber
added, "I do believe that teachers live useful lives, but I saw a chance
to be more useful."

####

If
you wish to read the interview please click on the link below. I am publishing
it under a Creative Commons licence, so you are free to copy and distribute it
as you wish, so long as you credit me as the author, do not alter or transform
the text, and do not use it for any commercial purpose.

If
after reading it you feel it is well done you might like to consider making asmall contribution to my PayPal account. I have in mind a figure of $8, but
whatever anyone felt inspired to contribute would be fine by me.

I would like to acknowledge the help
of the Open Society Institute, which provided a small upfront grant to enable
me to get started on The Basement Interviews project. Further information about
The Basement Interviews can be found at the Open & Shut? site.